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Note: That’s Not on the Table: Why Employers Should Pay for the Walk from the Locker Room to the Work Station

By Emily E. Mawer. Full text here.

The Fair Labor Standards Act requires employers to pay their employees continuously throughout the day, even for activities such as travel time, which may not be considered work. However, § 203(o) of the statute provides an exception to that obligation. The provision states that if the employer has established that employees are not compensated for time spent changing clothes in the locker room, by agreement or custom under a collective bargaining agreement, then the employer does not have to pay employees for that time. This raises the question of whether that unpaid time in the locker room still constitutes the start of the work day, and thus whether the employees are entitled to compensation for the walking time from the locker room to the work station. The issue has led to a recent circuit split between the United States Courts of Appeals for the Sixth and Seventh Circuits.

Although a short amount of time is at issue in § 203(o) litigation, such litigation requires resolving a conflict between collective bargaining agreements and statutory rights, since, without a union contract, the FLSA requires employers to pay for both the changing and walking time. This Note argues that the U.S. Supreme Court should resolve the circuit split and provide a framework for dealing with future conflicts between statutory rights and collective bargaining agreements. As collective bargaining has in many ways proven to be an unreliable protection of employee rights, the Court should require a narrow interpretation of § 203(o) and other similar exceptions to employee rights, restricting the statutory terms which may be placed on the bargaining table in a union contract. In doing so, the Court would protect statutory rights for all employees—regardless of union affiliation.